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As dust settles, Coalition gets cautious welcome on human rights

The Coalition Government is only a few days old but it is already receiving a cautious welcome from civil liberties commentators and bloggers, with all eyes on significant policy commitments in the Con-Lib deal. The previous government enacted major civil liberties legislation within a year of taking power; the question now is whether the Coalition has the time, will and co-operative potential to fulfil its lofty promises.

In its final years, New Labour was regularly criticised on civil liberties issues, particularly in relation to anti-terrorism law. But it is undeniable that within around a year of coming to power it had enacted a major piece of civil liberties legislation in the Human Rights Act 1998, which was followed shortly after by two others; the Data Protection Act 1998 and Freedom of Information Act 2000. Some, such as the Human Rights in Ireland Blog, say that sadly this was a high water mark and not to be repeated.

The Con-Lib coalition has already made significant early promises. The focus of commentators has been on the cabinet appointees who will influence law and order policy, as well as the surprisingly full civil liberties section in the Con-Lib Coalition agreement. Just as important, however, is what has been left out.

No human rights

A notable absence in the Civil Liberties section of the Coalition agreement is any mention of human rights. This may simply be a matter of branding, given the hostility which the Conservatives showed towards human rights in general and the Human Rights Act in particular in the run up to the election.

It now seems fairly clear that the Human Rights Act will not be repealed. This does not necessarily mean that the Conservative’s much vaunted but scantily detailed plans for a British Bill of Rights have been shelved, but in light of new Justice Secretary Ken Clarke’s recent and past comments, the Bill will probably not be a priority. This will come as a relief to many, who had feared that the proposal to recalibrate the Act would lead to the UK being in breach of its obligations under European Law. Joshua Rozenberg suggests that “the whole idea of reform seems to have been kicked into the long grass“.

Promises promises

The Coalition agreement contains a long shopping list of civil liberties promises, some specific, such as scrapping ID cards, and some more vague, such as the Freedom/Great Repeal Bill.

On protecting personal privacy, there have been few tears at the promise to scrap ID cards. The National ID register and the Contact Point Database, which has greatly worried privacy campaigners will also receive the proverbial boot. The promise to institute the “Scottish model” on the DNA database means that people suspected but not convicted of crimes will have their DNA stricken from the database, rather than maintained forever; a policy on which the Government has been recently criticised by the European Court of Human Rights.

Freedom of speech is addressed by the promise to “review of libel laws to protect freedom of speech”. Two recent disputes will be in the forefront of policymaker’s minds; the Simon Singh libel case involving freedom of scientific expression, and the John Terry ‘super-injunction’ against the media reporting on his extra-marital affair, which has resulted in a wide-ranging review being led by the head of the Court of Appeal. The Inforrm Blog hopes that “a proper, balanced, review can now be conducted (in the spirit of the new, balanced, Government)“, particularly in light of the fact that the commitment is less robust than that in the Conservative Manifesto.

The promised “Freedom” or “Great Repeal Bill” is a marrying together of the two parties’ manifesto promises (the Liberal Democrats and Conservatives respectively). Whether the eventual legislation will be as wide ranging as the draft Bill published by the Liberal Democrats is anyone’s guess, although interestingly a substantial number of the Bill’s proposals made it into the Coalition agreement, notably children’s biometrics, freedom of information, trial by jury, ID cards, DNA, regulation of CCTV and the right to public assembly.

Right men and woman for the job?

Whether the commitments are realised will depend in the most part on the personalities in the key law and order posts.

Kenneth Clarke was the surprise choice for Justice Secretary and Lord Chancellor, and the reaction has been generally positive, due to his unrivalled experience (within the cabinet) both as a lawyer and politician. Joshua Rozenberg expects that he will be a good fit for the Ministry of Justice, and has “”bottom” – that indefinable quality of solidity and reliability that suggests he is not prepared to be pushed around by officials, lawyers or anyone else“.

Dominic Grieve, the Attorney General, will be less crucial on policy but as Lord Goldsmith demonstrated during the Iraq war, his advice to the Government may have a significant impact on civil liberties. He is generally seen as sensible and according to a Guardian profile, has”achieved the impressive feat in his previous role [as shadow Justice Secretary] of maintaining the respect of lawyers despite the Tories’ plan to repeal the human rights act.”

Teresa May, the new Home Secretary, is largely untested. However, Christine Odone, blogging in The Daily Telegraph, is cheered by the fact that Ms May is “hated by dinosaurs on the Left and Right“. “Labourites”, she says, “can only handle someone who is right on across the board; those who believe in civil partnerships (as May does) but also in tightening the rules on abortion (ditto) are not “one of us”. It remains to be seen whether in practice she will be overshadowed by the large presence of Mr Clarke in the intertwined Jusice Ministry, or indeed if she survives in the treacherous post long enough to make an impact.

Once the dust has settled

Hopes for the Con-Lib Coalition are high, maybe dangerously so. Cian Murphy argues that the Coalition agreement may signal the birth of a new “liberal conservatism’, with a focus on civil liberties. Those who were critical of New Labour such, as Henry Porter, have welcomed the overtures to “reverse the substantial erosion of civil liberties” under the previous Government. Even Liberty, the human rights organisation, is cheered by the “way the new coalition has bound itself together with human rights”.

However, others urge caution. Conor Gearty, a professor at LSE, suggests that the Conservative Party tend to flirt with civil liberties when in opposition only to spurn them in office. He also worries that the Lib Dems have been bought off with insignificant policy commitments and, quoting the Spectator, “prestigious-sounding non-jobs“.

There are many unknowns which may obstruct the fulfilment of the Con-Lib Coalition’s lofty promises, not least the survival of the deal itself in the face of the pressures of governing. And, if it doesn’t work out, the larger party can always blame the smaller. As Max Hastings writes in the Financial Times, “As it is, with one bound [Mr Cameron] is free. Coalition with a centre-left party imposes constraints and vetoes – for example against repeal of the Human Rights Act – that enable Mr Cameron to turn up his hands to his own people and say: “Sorry, this is how it is. Of course we should love to wind the clock back, but Cleggy’s lot won’t wear it.”

That being said, many of the policies mentioned should be fairly straightforward to implement, and the rolling back of some of New Labour’s less popular law and order legislation may serve as welcome and popular distractions for the parties during the first difficult year.

So, whilst the reaction to the Coalitioa amongst human rights campaigners and commentators has been a cautious welcome, it has been a welcome nonetheless.

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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.